September 2011 Archives

Since our September 9th post regarding doctors charged with medical malpractice still practicing, there has been a significant development. As a result of the Kansas City Star's article regarding Dr. Tenny's most recent medical malpractice settlement, the Department of Health and Human Services (HHS) has removed public access to its National Practitioner Data Bank. Even though the information was presented in a way to keep the doctors and hospitals involved in the suits anonymous, journalists were able to compare the database information with medical malpractice court records to determine which entries applied to Dr. Tenny.

The National Practitioner Data Bank became aware of the Kansas City Star's intention of using the data when Dr. Tenny's attorney contacted the association. The journalist reporting the story had contacted Tenny to give him an opportunity to comment on the findings; instead he contacted his attorney. The HHS attempted to persuade the Star to not run the story by mentioning fines that could be imposed for misuse of the data bank information. The Star went ahead with the article and included the information because it was public, not confidential.

According to the spokesperson for HHS, Martin Kramer, the information may be available to the public again in the future, but it is unclear when, or in what format the data would appear. He said federal law requires that the information be confidential and it will take time to review the data and determine how to present it so that it remains confidential.

Several groups, including journalism organizations and the Public Citizen's Health Research Group, have lobbied members of Congress to have the database made available to the public again. A letter submitted by the journalists states, "Without stories written by our members, it's fair to say that some unsafe doctors would continue to be practicing with clean licenses and patient protection legislation in several states likely would not have been enacted." A letter from the Public Citizen's Health Research Group to HHS said "The continued availability of this data is crucial to patient safety and research aimed at informed public policy decisions concerning malpractice, tort reform, peer review, and medical licensing."

In March, 2010, 11 people were killed in Munfordville, Kentucky when a commercial truck crossed the median and collided with a 15-passenger van. After reviewing the accident for almost 18 months, the National Transportation Safety Board Commission (NTSB) determined that the semi driver was using his cell phone at the time of the collision. The last of four calls the driver made in the 23 minutes before the accident was only connected for one second before the crash at 5:14a.m. A total of 69 calls and text messages appeared on the phone in the 24 hours leading up to the accident.

As a result of this truck accident, NTSB is recommending that hand-held and hands-free cell phone use by commercial drivers be banned, unless there is an emergency. What the states and other transportation agencies do with the recommendation remains to be seen. Chuck Wolfe, spokesman for the Kentucky Transportation Cabinet, suggested that the banning of cell-phone use be handled by Congress rather than by the state of Kentucky since the drivers operate in multiple states. Kentucky currently has laws that prohibit all drivers from texting while driving and drivers under 18 from any cell-phone use. NTSB Chairman Deborah Hersman encourages everyone to consider eliminating cell-phone use while driving, saying, "Changing behavior can start right now, for big-rig drivers and also for the rest of us. When you are at the wheel, driving safely should be your only focus. You owe it to yourself and all the people on the road you put at risk..."

While the families of the victims in the van did not file any lawsuits because of their religious beliefs, accidents that are attributed to driver distraction can have legal consequences. Gross negligence can be charged if the driver was distracted by texting. The fact that the semi driver was operating the vehicle on only four hours of sleep could have also been a basis for gross negligence. Employers of individuals who cause accidents while using their cell phones could be liable as well. A 2002 New York Times article regarding doing business by cell phone discusses a settlement of $500,000 between Smith Barney and the family of a motorcyclist killed by one of its brokers who was on the phone when the accident occurred. The actual driver of the car was charged individually with manslaughter and pled guilty.

Many parents feel, and rightfully so, that their babies are safest in their cribs. They are in their own homes, unable to get into unsafe situations. Unfortunately, this is not always the case. Between 1990 and 2008, over 7500 infant injuries involved cribs. As a result, new federal rules have been enacted to make cribs safer for babies.

One major culprit has been drop-side cribs, responsible for up to 32 infant deaths. The movable sides of drop-side cribs have been shown to drop unexpectedly, causing a baby to become trapped or suffocated by the crib side, or allowing an infant to fall. As of June 28, 2011 manufacturers are no longer allowed to make drop-side cribs. Although over 11 million of the cribs have been recalled, many are still in use by daycare centers and hotels, which have until December 28, 2012, to replace drop-side cribs with those with stationary sides. To see if a crib has been part of a recall, individuals can check www.cpsc.gov, www.keeping babiessafe.org, or www.recalls.gov. Parents who own a drop-side crib that was not recalled can contact the manufacturer to see if an immobilizer is available. The U.S. Consumer Product Safety Commission (CPSC) warns that these immobilizers are not subject to the more rigorous standards, so it would be better to replace the crib.

According to the CPSC, crib manufacturers must also "strengthen crib slats and mattress supports, improve the quality of hardware and require more rigorous testing." Faulty crib slats and mattress supports can come loose, creating an opening large enough that a child could get trapped. Hardware can come loose and create an entrapment situation or a hole large enough for a child to fall.

A combination of these factors caused the death of a Kentucky infant when the plastic hardware holding the drop side of the crib broke, allowing the side to slide down and the infant to become entrapped between the side and the mattress. The 7-month-old's death in 2009 was one of 11 attributed to cribs manufactured by Simplicity, which no longer is in business. The parents of a Florida 9-month-old who died in a Simplicity crib settled a wrongful death lawsuit for an undisclosed amount in 2010.

A woman who went to a neurosurgeon in Kansas to have a pool of blood removed from near her brain never went home again. Instead, she was left paralyzed on one side and wasn't able to talk as a result of a brain injury that occurred during the operation. She never regained consciousness and died after several days. Her family filed a wrongful death suit. Her surgeon, Dr. Robert Tenny, was very familiar with lawsuits, having been sued at least 16 times previously for alleged mistakes. The family's $1 million settlement is the most recent part of the $3.7 million that has been paid over the last 20 years on behalf of Dr. Tenny. Had the victim or her family been aware of the doctor's previous suits, they could have selected a different physician and avoided this tragedy.

Most doctors will be sued at least once during their practicing years, but to be sued repeatedly or have multiple misconduct issues is unusual. Indiana doctor Mark Weinberg has been sued more than 300 times by patients alleging he performed unnecessary surgeries and billed them for services he never provided. One of his victims died in 2004 after he misdiagnosed her stage four throat cancer as nasal polyps and a deviated septum. The victim's family filed a medical malpractice lawsuit against Dr. Weinberg and was awarded $13 million.

In Kentucky, several doctors have been accused of and disciplined for sexual misconduct. Most recently Dr. Ashok Alur was arrested for sexually abusing a patient in his office. Even after his arrest, and two more victims coming forth, Dr. Alur is still able to practice in his Crestwood office as long as a chaperone is present. Kentucky medical malpractice lawyer Charles Miller, of Miller & Falkner, who represented one of the victims, states, "It's a threat to the community at large to allow someone who's admitted to sodomizing a patient to continue practicing medicine under any circumstances."

So how does one know if a doctor has been sued for malpractice or accused of misconduct? Information available to the public varies by state.

The family of a 23-year-old victim, who died when a stage collapsed at the Indiana State Fair in Indianapolis, has filed a lawsuit against Indiana and the companies who organized the concert, claiming recklessness and gross negligence. This suit follows another filed by the same attorneys for the family of a 42-year-old woman who was killed, and her injured partner. The first suit was filed in LaPorte County, but was moved to Indianapolis.

Gross negligence occurs when a person or entity disregards the safety of others. A party can be considered negligent even if natural causes are involved. In this case, the fair and concert organizers allegedly did not warn concertgoers of an impending storm, which caused the stage to collapse with wind gusts up to 70 mph. The attorneys filing the case also allege that the stage was not inspected and was not strong enough to withstand high winds.

If gross negligence is found, a plaintiff may be awarded punitive damages, as well as general damages. Punitive damages are different than general damages in that they are awarded to the plaintiff as a punishment to the defendant and a deterrent to acting in a similar manner in the future. The plaintiff's attorney in this lawsuit thinks $50 million would be fair compensation to the parents for the loss of their child.

Gross negligence can occur in many types of cases. An example of gross negligence in a medical malpractice case would be a doctor removing an incorrect limb or organ, or leaving a piece of medical equipment in the body during surgery. Injury or death can also be attributed to gross negligence in auto accidents. If the defendant was intoxicated or texting while driving, gross negligence may be charged. Companies can be charged with gross negligence for requiring employees to use tools that are known to be defective or for knowingly renting out faulty equipment to consumers. Professionals can also be negligent if an injury occurs when they attempt to perform their duties while under the influence of drugs or alcohol.